[14] Once the principle is accepted for trial actions there is no reason why it cannot apply to application
proceeding. In Modderklip,16 which was brought on notice of motion, this court issued an order for the
determination of the quantum of damages based on the formulation used in Harvey Tiling (supra). The order of
the Constitutional Court was in this
Page 350 of [2011] 1 All SA 343 (SCA)
regard identical.17 The fact that the order related to "constitutional" damages does not affect the procedural
principle.
[15] There is, without derogating from the foregoing, an additional reason why the procedure is permissible in this
case. Section 10 of the Act provides that an order for damages may be ordered against a complainant "in any
civil or criminal proceedings relating to counterfeit goods." Cadac's application to set aside the warrant was
such a proceeding within the meaning of the section, which does not require separate proceedings for the
determination of quantum. In the absence of rules regulating these quantification proceedings, a court has to
prescribe an appropriate procedure.
The causa of Cadac's claim
[16] The issue relating to the nature of Cadac's claim arises from WeberStephen's argument that at the time that
the main application was launched the right to damages had not yet accrued and that the proceedings for the
recovery of damages (albeit in the form of an inquiry into damages) were accordingly premature. This
argument was based on the supposition that the warrant was not void but voidable and that a cause of
action for wrongful attachment of goods could only arise once the warrant has been set aside until then it
remains valid. As was said by Trollip JA, until a warrant like the one in the instant case is set aside 'it
continues to have the effect of justifying the proposed attachment [citations omitted] and, without more, the
appellant cannot obtain the interdict it seeks.'18
[17] The learned Judge was concerned with an application for an interdict to prevent the police from attaching
certain gambling machines. The police in answer relied on a warrant issued by a magistrate. The application,
the judge said, could not be regarded or treated as including a claim to have the warrant set aside because
there was not a timely attack on its validity (the attack, it would appear, came in the replying affidavit).
Without such a claim, the interdict could not be granted. This means that the interdict could have been
granted if in the same proceedings the there was a prayer, which was successful, for the setting aside of the
warrant.
[18] The cause of action for an interdict and one for damages are the same. Only the nature of the relief differs.
And although there are statements in cases that damages can only be sought after a warrant had been set
aside, those statements must be read in context. They dealt with the distinction between malicious
attachments and wrongful ones. Because a writ is a defence against a claim based on the former the claim
cannot succeed unless the writ is set aside.19 To anticipate reliance on a writ by the
Page 351 of [2011] 1 All SA 343 (SCA)
defendant, a plaintiff must include a claim for having it set aside. No one ever suggested that two
proceedings, one for setting aside and the next for damages, are required. The reason is apparent. The
declaration of invalidity operates retrospectively and not prospectively. This means that once a warrant is set
aside it is assumed that it never existed and everything done pursuant thereto was consequently unlawful.
[19] I, therefore, conclude that the claim relating to damages in the application to set aside the warrant was not
premature. The notice of motion was a process whereby proceedings were instituted as a step in the
enforcement of a claim for payment of a debt.20 This means that the running of prescription was interrupted
in terms of section 15(1) of the Prescription Act 68 of 1969.21
Failure to prosecute the claim for damages
[20] I have mentioned that Cadac had failed to further prosecute its damages claim until it launched the present
proceedings on 20 March 2008. Because of this delay, WeberStephen relied on section 15(2) o f t h e
Prescription Act which provides, inter alia, that "the running of prescription shall not be deemed to have been
interrupted, if the creditor does not successfully prosecute his claim under the process in question to final
judgment." The argument was that since Cadac did not prosecute its claim to a final judgment the claim
became prescribed. For this proposition reliance was placed on the judgment in Chauke.22
[21] The immediate problem with the argument is this: when did the claim prescribe? Counsel suggested within
three years from the judgment of Schwartzman J, but there is no time limit stated in section 15(2) within
which the claim must be prosecuted with success. It could just as well have been three days, weeks or
months. In any event, Munnik CJ analysed section 15(2) in Titus23 and came to the conclusion that Chauke
was incorrect. I can do no better than to rely on his reasoning. He pointed out, with reference to Kuhn v
Kerbel and another 1957 (3) SA 525 (A) [also reported at [1957] 3 All SA 365 (A) Ed], a case decided under
the Prescription Act 18 of 1943, that the Act rendered a right unenforceable after the lapse of a certain time,
but did not purport to deal with the time within which proceedings had to be concluded. Extinctive
prescription, it held, limits the time within which proceedings must be instituted but once instituted its
continuance is governed by the rules of court. The reason is that while the initiating step (the issue of
process) is within the power of the creditor the subsequent conduct of the proceedings might not be.24
Page 352 of [2011] 1 All SA 343 (SCA)